From todays Dejoria v. Maghreb Petroleum Exploration S.A. (W.D. Tex. Aug.

13, 2014) (some paragraph breaks added):

A. The Moroccan Court Judgment Was Not Rendered Under a Svstem that Provides Impartial Tribunals and
Procedures Compatible with Due Process.
A foreign judgment cannot be recognized in Texas if it was rendered under a system which does not provide
procedures compatible with the requirements of due process of law. Tex. Civ. Prac. & Rem.Code 36.005(a)(l).
The term due process in this context does not refer to the latest twist and turn of our courts regarding
procedural due process norms, because it is not intended to reflect the idiosyncratic jurisprudence of a particular
state. Socy of Lloyds v. Ashenden, 233 F.3d 473, 476-77 (7th Cir. 2000) (interpreting an identical provision of the
Uniform Foreign Money Judgments Recognition Act under Illinois law). Instead, this provision has been
interpreted to mean that the foreign procedures [must only be] fundamentally fair and not offend against
basic fairness.
The international due process standard first described by Judge Posner in Ashenden sets a very low bar for
enforcement. The virtue of this construction and one of the reasons that so many courts have adopted the
standard is that any country that has a history of commitment to the rule of law will pass the test. Given this fact,
it is not surprising that the vast majority of courts faced with claims that a foreign court system did not provide
adequate due process to warrant enforcement have found that the issuing court in fact provided sufficient due
process to justify recognition.
Yet, from time to time, judgments are rendered against Americans in countries whose adherence to the rule of law
and commitment to the norm of due process are open to serious question. Where there is evidence that a countrys
judiciary is dominated by the political branch of government or by an opposing litigant, or where a party cannot
obtain counsel, secure documents, or secure a fair appeal, recognition of a foreign judgment may not be appropriate.
See, e.g., Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1411-12 (9th Cir.1995); Choi v. Kim, 50 F.3d 244, 249-50 (3d
Cir.1995); Banco Minero Ross, supra, 172 S.W. at 715; Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286-88
(S.D.N.Y.1999).
A close examination of Moroccos legal system reveals structural and practical issues that are not present in
countries like England, France, or South Korea. While Morocco has made serious strides in many areas and appears
to have a populous genuinely desirous of and committed to establishing a societal framework founded upon the rule
of law, the Moroccan royal familys commitment to the sort of independent judiciary necessary to uphold the rule of
law has and continues to be lacking in ways that raise serious questions about whether any party that finds itself
involved in a legal dispute in which the royal family has an apparent interest-be it economic or political-in the
outcome of the case could ever receive a fair trial.
1. Moroccan Judges Are Not Independent And Are Susceptible To Being Pressured By Members Of The Royal
Family.
In September of 2010, USAID released its Morocco Rule of Law Report. Spanning a total of 66 pages, the report
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touches on a broad array of topics including many that are directly relevant to the Courts inquiry in this case.
Right off the bat, the authors of the report paints a bleak picture of the state of the rule of law generally, and the
functioning of the judicial system specifically, in Morocco. In the last sentence of the very first paragraph of the
reports Executive Summary, the authors observe that among Moroccan citizens, there is a widely held perception
that corruption is tolerated, that a political and security elite act with impunity, and that strong actions are taken
against those who would challenge power.
Before launching into the body of the report, though, the authors provide the reader with seven bullet points
intended to broadly describe their findings. The first bullet point reads: Judicial independence is lacking due
to a number of factors, including deficiencies in both law and practice [t]he roles of the Ministry of Justice (MOJ)
and the King further complicate this issue. (Emphasis in original). The last bullet point is equally ominous. It simply
states: Corruption is one of the most significant challenges confronting Morocco.
The USAID reports findings with respect to the Moroccan judiciary - especially those related to the subject of
judicial independence are particularly relevant to the Courts inquiry in this case. The authors describe the
current judicial system as permeable to political influence and go on to explain that the mechanisms through
which judges are appointed, promoted, sanctioned, and dismissed leave them [Moroccan judges] vulnerable to
political retribution. As a result, the judiciary still suffers from persistent complaints that it is plagued with
corruption, is not independent or accountable, does not have effective mechanisms for enforcement, and is
encumbered by delays.
The judiciarys struggle to remain independent is in part a result of structural factors. While the 1996 Constitution
guarantees judicial independence, the judiciary remains under the administrative control of the Ministry of Justice,
which of course answers directly to the King. Moreover, the Constitution does not establish the judiciary as an
autonomous entity.
That the judiciary is not structurally insulated from the other political branches of government is unremarkable, at
least in the context of other international judicial systems. In fact, the Moroccan Constitutions language relating to
the judiciary is modeled on Frances Constitution. Unfortunately, members of Moroccos judiciary must also contend
with forces that do not exist in France. Specifically, [j]udicial independence [in Morocco] is further complicated by
the Kings role. Not only are all judgments rendered by Moroccan courts issued in the name of the King, but the
King also presides over the Conseil Superieur de la Magistrature (High Judicial Council), which is the body that
appoints, disciplines, and promotes judges.
Additionally, per Article 24 of the Moroccan Constitution, the King appoints the Minister of Justice. Given that the
MOJ sits on the High Judicial Council, this gives the King considerable indirect influence over the makeup of the
judiciary since [t]he MOJ exercises significant influence over the appointment, discipline, transfer, and promotion
of judges. This fact makes judges beholden to the MOJ not only for their initial appointment but for their
continued job security as well, with obvious negative implications for judicial independence.
Indeed, in March of 2011 two years after the Moroccan Court issued its judgment against DeJoria Moroccos
very own Foreign Minister all but confirmed the veracity of the USAID reports findings pertaining to judicial
independence in Morocco. Speaking to an audience at the Brookings Institute in Washington DC, Foreign Minister
Taieb Fassi-Fihri, described Moroccos continuing problem with phone call justice. Judicial independence, he
explained, is not the reality today, because (there are) some calls from time to time, from the Justice Department
to some judge.
Together, the USAID report and the foreign ministers comments paint a picture of a judicial system in which judges
feel tremendous pressure to render judgments that comply with the wishes of the royal family and those closely
affiliated with it. Yet perhaps the most powerful piece of evidence that all is not well in the Moroccan judicial system
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came from the Moroccan judges themselves. On October 6, 2012, roughly 1,000 Moroccan judges staged a sit in in
front of the Moroccan Supreme Court demanding more independence for the judiciary. With them, the protesting
judges carried a petition signed by 2,200 Moroccan judges roughly 2/3rds of the countrys total judges
demanding structural reforms to guarantee their independence from the King. The gesture speaks for itself, but it is
worth noting that every judge that signed the aforementioned petition did so knowing that by publicly opposing the
King, they were opening themselves to precisely the kinds of retribution discussed by the USAID report.
2. The Kings Actions In 2007 Reveal That The King Actively Sought To Shape The Publics Perception Of His (And
Dejorias) Role In The Talisint Oil Project Through Intimidation.
MPE/MFM do not dispute the fact that the King could intervene in the legal process if he wishes to do so. They do
not deny that Skidmore played an important role in the process that ultimately lead the King to give his ill fated
speech announcing the existence of large, exploitable oil reserves in Morocco. They do not dispute that the Prince of
Morocco himself received shares (however small the interest) in the company Skidmore created in Morocco for the
purpose of facilitating its aims and objectives there. MPE/MFM do not even quibble with the assertion that DeJoria
had personal contact with members of the royal family, including the King himself, in advance to the creation of the
partnership between the Moroccans and Skidmore .
Nevertheless, MPE/MFM argue that the Court need not worry about these factors since DeJorias case simply did
not matter enough to the King or royal family to warrant genuine concern that the royal family would corrupt the
process. After all, MPE/MFM note, the Princes financial stake in MPE was too small to matter. Moreover, according
to MPE/MFM, there is no evidence that the King or anyone else in Morocco these days cares about [DeJoria] at all
or even remembers who he is or the bad acts he perpetrated.
As a general matter, MPE/MFMs suggestion that the circumstances surrounding the case do not warrant real
concerns that the King or royal family corrupted the judicial proceedings is simply not credible. For one, the Princes
insignificant financial interest (MPE/MFM claim that the Prince owns 0.00026% of MPE) is not insignificant at all.
Even assuming that MPE would only receive 50% of the settlement award of $122.9 million, the value of the Princes
ownership interest in the company would be boosted by at least $15,977. Given that the Prince appears to have paid
zero consideration in return for his ownership interest in Armadillo (now MPE), such an award would represent
quite a nice windfall.
As for MPE/MFMs suggestion that there is no evidence that the King particularly cared about DeJoria or his role in
the Talsint oil project, the evidence plainly suggests otherwise.
On Monday, January 27, 2007, Le Journal, a Moroccan daily newspaper, ran a feature story under the headline
The Talsint Oil Lie. Citing a letter sent by Skidmore Chairman (and DeJoria partner) Michael Gustin to the King
and other top officials, the article accused the King and some officials of bribery and disinformation in regards to
Skidmores exploration and attempted production of oil in south eastern Morocco in 2000.
Neither the story nor the paper would survive for very long. The next day, Le Journal suddenly retracted the story,
stating (without any meaningful explanation) that everything they had published was untrue. The paper also
announced again without any explanation that it would voluntarily go out of circulation for an undisclosed
period of time. Two days later, a sister publication reported that the author of the offensive Le Journal article
(who also served as Le Journals editor-in-chief) and Le Journals publisher were both compelled to appear at the
Justice Center so that they could be interrogated by criminal prosecutors about their involvement with the story.
Unsurprisingly, it appears that the above series of events was not an aberration. The King has a history of
suspending (and punishing) publications that displease him.
Indeed, when Le Journal resumed publishing, it was not the only news publication that was re-emerging after a
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lengthy suspension. Shortly after Le Journal returned to print, so too did a magazine called Nishan. Nishan was
reportedly suspended from circulation for a period of two months by a Moroccan court for publishing jests that
were deemed offensive to King Mohammed VI and Islam. The article also noted that the editor of the offending
issue of Nishan, along with another former member of the magazines editorial board, was sentenced by a Moroccan
judge to three years prison with probation, along with a $9,500.00 fine, for his role in offending the King.
The King may or may not have disliked DeJoria personally, but the lengths his government went to silence and
punish Le Journal for suggesting, in public, that the Kings involvement and sponsorship of the Talsint oil project
may not have been completely aboveboard certainly suggests that the King cared a great deal about how his
involvement in the project was presented to the public. Moreover, the governments response revealed that the
Kings government was willing to intimidate and retaliate in order to protect that public image.
Consider now the lawsuit against DeJoria and his partners. Lawsuits are legal vehicles for apportioning blame.
Lawsuits also tell stories. In the underlying lawsuit, the Moroccans accused DeJoria and his partners of being
fraudsters. The implication of that allegation, if true, is that DeJoria and his partners lied to their partners and
mismanaged the company. Yet the inverse is also true: the implication of a finding absolving DeJoria and his
partners of any liability would suggest that DeJoria and his partners had dealt fairly with the Moroccans and that
they were all equally responsible for the failure of the project.
Given the narrative power that the verdict would undoubtedly have, MPE/MFMs suggestion that a man who cared
enough about maintaining his image to intimidate and prosecute a whole paper into submission had no interest in the
outcome of a case which could either re enforce his favored image or, alternatively, make him appear foolish if not
downright dishonest for having promised so much oil during his now infamous speech.
These facts would have been readily apparent to any judge presiding over this case. Given the Kings history of
retaliation, not only against judges who displease him but against anyone who threatens his narrative relating to his
involvement in Talsint, the Court cannot conceive of any set of circumstances in which the presiding judge in the
underlying case would not have felt tremendous pressure to side with MPE/MFM. The Prince had an economic
interest. The Kings behavior suggests a strong preference that DeJoria be portrayed as a fraudster who misled the
King (since, if DeJoria did not, the King appears dishonest, incompetent, or both in retrospect).
Whether or not the King, Prince, or some other official picked up the phone and ordered the judge to find against
DeJoria is, in some sense, beside the point. Even if no such phone call was ever made, the Court nevertheless cannot,
in good conscience, conclude that Morocco provided Mr. DeJoria with adequate due process to warrant enforcement
in this country.
Judges are not stupid people oblivious to outside pressures. As evidenced by the mass judicial protests, Moroccan
judges are keenly aware that their livelihoods (present and future) depend on remaining in the good graces of the
King and the royal family. Given this fact, along with the circumstances outlined at length surrounding this case, the
likelihood that DeJoria could have or did receive a fair hearing in which the outcome was not pre-ordained is too
minimal to permit the Court to overlook the serious issues with both the system and the application present in this
case.
[A] common sense reading of the evidence in this case unequivocally supports the conclusion that John Paul
DeJoria could not have expected to obtain a fair hearing in Morocco had he attempted to fight the charges against
him. While the evidence plainly suggests that Moroccos judges wish to obtain the freedom from pressure necessary
to impartially conduct the business of the court system, the evidence also reveals that any judge presiding over
DeJorias case would have had to ignore either an explicit or implicit threat to his career if not to his safety and
well-being in order to find against MPE/MFM.
Perhaps the evidence did not ever present the judge with this hard choice, but the Courts job is not to determine
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whether the judge in the underlying case reached the right decision. Instead, the Court is tasked with deciding
whether, based on the evidence, DeJoria or some similarly situated party could have received adequately fair
procedures to warrant enforcement. The answer to this question is no. Absent an act of tremendous bravery by the
judge, there is no conceivable set of facts or circumstances in which DeJoria could have prevailed in the underlying
case. Such a proceeding is not, was not, and can never be fundamentally fair.

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